TMI Blog2008 (2) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... pany along with the company but even in a case falling under section 406 of the Indian Penal Code, 1860, vicarious liability has been held to be not extendable to the directors or officers of the company. - CRIMINAL APPEAL NO. 317 OF 2008 - - - Dated:- 15-2-2008 - S.B. SINHA AND V.S. SIRPURKAR, JJ. R.F. Nariman and Goodwwill Indeevar for the Appellant. Ratnakar Dass, Shalini Das, Anuvrat Sharma, Pramod Swarup, Prashant Chaudhary, Bharat Ram and M.C. Dhingra for the Respondent. JUDGMENT S.B. Sinha, J. Leave granted. M/s. Akash Traders was an area wholesale dealer of Britannia Industries Ltd. ("the company") for Azamgarh, U.P. The dealership of respondent No. 2 was terminated by the said company. It was ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001. Inter alia, relying on or on the basis of the allegations made in the complaint petition that "the company with mala fide intention neither sent the goods, nor returned the money" ; an order for summoning the appellants was passed on May 8, 2001. A publication to that effect was also made in an article in a local newspaper. An application for recalling the order summoning before the learned Chief Judicial Magistrate was filed by the appellant. The learned Chief Judicial Magistrate, by an order dated December 13, 2001, discharged the accused in terms of section 245(2) of the Code of Criminal Procedure, 1973, holding: "From the perusal of the record, this fact has come to light that between the complainant M/s. Akash Traders, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the accused and the complainant regarding agency on September 13, 2001, bank draft for an amount of Rs. 1,68,000 was sent to Britannia Industries Ltd., for the supply of biscuits. Prior to this also agreement dated September 8, 2000, has already been terminated regarding the agency in favour of M/s. Akash Traders, Azamgarh. The complainant for receiving back an amount of Rs. 1,68,000 sent letters dated October 11, 2000, and October 21, 2000, but till February 7, 2001, the complainant did not receive back the above amount of Rs. 1,68,000. But from the perusal of the photo copy of the letter enclosed with the file of the bank draft of State Bank of India, Keshavpuram, Delhi, it has become clear that the bank draft No. 597805 dated Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under the provisions of section 245(2) of the Cr. P.C. which is not legal and proper. Under the provisions of section 244 of the Cr. P.C, the complainant must be granted opportunity of filing the evidences in detail as per the law. Under the above, provisions, the charges are framed against the accused persons after the evidences are taken on record otherwise not, that is to say, passing of order under section 245 of the Cr. P.C. would be proper and justifiable." An application filed by the appellant before the High Court in terms of section 482 of the Code of Criminal Procedure was dismissed by the High Court by reason of the impugned judgment, stating : "From the perusal of the allegations made against the applicants and from the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a juristic person. The demand drafts were issued in the name of the company. The :ompany was not made an accused. The dealership agreement was by and between M/s. Akash Traders and the company. Mr. Pramod Swarup, learned counsel appearing on behalf of respondent No. 2, in support of the order passed by the learned Chief Judicial Magistrate as also the High Court, submitted that as, prima facie, the appellant was in charge of and was in control of the business of the company, he would be deemed to be liable for the offence committed by the company. Indian Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provisions Act, 1952, etc., have created such vicarious liability. It is interesting to note that section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the Explanations appended to section 405 of the Indian Penal Code, 1860, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling under section 406 of the Indian Penal Code, 1860, vicarious lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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